Can a South Carolina state representative serve on the Palmetto College Board of Visitors without breaking dual-office-holding rules?

Official title

Opinion addressing whether a member of the Palmetto College Board of Visitors holds an office.

Requester

Requested by The Honorable Brandon Newton, Member, South Carolina House of Representatives.

Plain-English summary

A sitting member of the South Carolina House of Representatives was asked to serve on the Palmetto College Board of Visitors and wanted to know whether doing so would violate the state's dual-office-holding ban.

The Attorney General's office said it would not. The South Carolina Constitution (Article XVII, § 1A) bars one person from holding "two offices of honor or profit at the same time." But not every position is an "office." The test, drawn from the courts, asks whether the position exercises "some part of the sovereign power" of the state, things like the power to tax, the power of eminent domain, or the police power.

The office found that the Palmetto College Board of Visitors is an advisory body, not created by statute, whose members have no legal or fiscal authority. Because the Board does not exercise any sovereign power, the office concluded its members do not hold an "office." A member of the House does hold an office, but serving on this advisory board alongside that seat would not create a prohibited dual office. So the representative could accept the role.

What this means for you

Legislators and other officeholders weighing a second appointment: Under this opinion, serving on a purely advisory board that is not created by statute and exercises no sovereign power does not count as holding a second "office," so it does not trigger the Article XVII, § 1A dual-office ban.

People appointed to advisory boards and commissions: The opinion restates the office's long-held position that members of advisory bodies generally are not officeholders. Whether a particular board counts turns on whether it exercises sovereign power, not on its title.

Common questions

What is the dual-office-holding rule in South Carolina?
Article XVII, § 1A of the state Constitution prohibits one person from holding two offices of honor or profit at the same time, with narrow exceptions (such as militia officer, fire department member, constable, or notary public).

Why isn't the Palmetto College Board of Visitors an "office"?
The opinion explains that a position is an office only if it exercises some part of the state's sovereign power. The Board is advisory, was not created by statute, and its members have no legal or fiscal authority, so the office concluded it is not an office.

Does a seat in the state House count as an office?
Yes. The opinion notes the office has advised on numerous occasions that a member of the House of Representatives holds an office. The point of the opinion is that adding the advisory board seat does not create a second office.

Background and statutory framework

South Carolina's dual-office-holding prohibition appears in Article XVII, § 1A of the state Constitution. The courts have interpreted "office" to mean a position that exercises part of the state's sovereign power. In Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907), the South Carolina Supreme Court framed the violation as holding two or more public offices involving an exercise of sovereign power. In State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980), the court listed factors relevant to whether a position is a public office, including whether statutes establish the position, set qualifications, duties, or tenure, require an oath, or authorize the exercise of sovereign power, with no single factor controlling. Applying those tests, the office determined the Palmetto College Board of Visitors, an advisory body not created by statute, is not an office.

Citations

Constitutional provision: S.C. Const. Art. XVII, § 1A.

Cases: Sanders v. Belue, 78 S.C. 171, 58 S.E. 762 (1907); State v. Crenshaw, 274 S.C. 475, 266 S.E.2d 61 (1980).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-member-of-the-palmetto-college-board-of-visitors-holds-an-office/
• Original PDF: https://www.scag.gov/media/rfujfd3t/03398538.pdf

Original opinion text

*Wifely
Alan Wilson
attorney General

September 2 1 , 2023

The Honorable Brandon Newton
Member

South Carolina House of Representatives
P.O. Box 2501
Lancaster, SC 29721

Dear Representative Newton:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
states the following:

I am requesting an opinion dealing with dual office holding. I am currently
serving in the State House of Representatives and have been asked to serve on

the Palmetto College Board of Visitors. Would accepting this role violate our
dual office holding laws?
Law/Anaiysis

It is this Office’s opinion that Palmetto College Board of Visitors members do not hold an
office for dual office holding purposes as provided in the South Carolina State Constitution.
Article XVII, § 1 A of the South Carolina Constitution prohibits a person from holding “two offices
of honor or profit at the same time, but any person holding another office may at the same time be

an officer in the militia, member of a lawfully and regularly organized fire department, constable,

or a notary public.” A person violates this provision if he holds two or more public offices which
“involv[e] an exercise of some part of the sovereign power ...” Sanders v. Belue, 78 S.C. 171, 58
S.E. 762 (1907); see also Op. S.C. Atf y Gen., 1996 WL 599391 (September 6, 1996) (sovereignty
traditionally includes power to tax, power of eminent domain, and police power).

In State v.

Crenshaw, 274 S.C. 475, 478, 266 S.E.2d 61,62 (1980), the South Carolina Supreme Court stated

that relevant considerations for determining whether a position would be considered a public office
include whether statutes, or other such authority, establish the position, the qualifications for

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The Honorable Brandon Newton
Page 2
September 21, 2023

appointment, duties, tenure, require an oath for the position, or otherwise authorizes the position

to exercise a sovereign power of the state. No single criterion is dispositive, and it is not necessary

that a position exhibits all the criteria to find that a position is an office. Id.
It is this Office’s understanding that the Palmetto College Board of Visitors is not created
by statute. Article VII of the Board of Visitor’s bylaws website describes its operations.

The Palmetto College Board of Visitors is an advisory organization. The members
have no legal or fiscal responsibility or authority. The advice of each person serving
on the Palmetto College Board of Visitors is vitally important to Palmetto College

and to the overall success of the Board. The administration is free to accept input
from the Palmetto College Board of Visitors at its discretion.
University

of

South

Carolina,

Palmetto

College,

Bylaws,

https://sc.edu/about/system_and_campuses/palmctto_college/about/leadership/board_of_visitors/

bylaws/index.php (last visited Sept. 21, 2023).

As the bylaws state, the Board of Visitors is

advisory in nature and does not appear to exercise the sovereign power of the state. This Office’s
opinions have “concluded on numerous occasions that members of advisory bodies arc not
considered office holders.” Op. S.C. Att’y Gen., 201 1 WL 1740744 (April 18, 201 1).

Conclusion

This Office has advised on numerous occasions that a member of the House of
Representatives holds an office. However, it is this Office’s opinion Palmetto College Board of

Visitors members do not hold an office for dual office holding purposes as provided in the South
Carolina State Constitution. Article XVII, § 1A of the South Carolina Constitution prohibits a
person from holding “two offices of honor or profit at the same time.”

It is this Office’s

understanding that the Board of Visitor’s was not created by statute and is properly considered an
advisory body. Because members of the Board of Visitors do not “exercise of some part of the
sovereign power” of the State, a court would likely hold its members do not hold an office. Sanders
v. Bcluc, 78 S.C. 171, 58 S.E. 762 (1907). Therefore, you may accept a role on the Palmetto
College Board of Visitors without violating the prohibition on holding dual offices.

Matthew Houck

Assistant Attorney General

The Honorable Brandon Newton
Page 3
September 21, 2023

REVIEWED AND APPROVED BY:

Kobert D. Cook
Solicitor General